The defendant by his pleadings, placed his defence to this action for an assault and battery, alleged to have been committed by him upon the plaintiff, in part upon the general issue, and in part upon the ground that the plaintiff was attempting unlawfully to detain him in her shop ; and introduced evidence, tending to show that no force was used by him, beyond what was necessary to remove her from the door where she was opposing his egress and enable him to open it and go out.
If the case were to turn upon, the general issue only, or upon a finding by the jury that the plaintiff was not unlawfully attempting to detain the defendant in the shop, the defendant could not complain of this instruction as to the assessment of damages. It is substantially the same instruction which was given in Watson v. Christie, 2 Bos. & Pul. 224, and sustained there because the pleadings did not set up a justification, and so no question as to excess of force upon the part of the defendant could properly arise.
The difficulty with it in the present case is, that it seems to have been the • only measure for the amount of damages which was given to the jury, and it is not appropriate upon the hypothesis that the jury should find that the defendant was subjected to an unlawful imprisonment by the plaintiff, and so had a right to use so much force as was necessary to liberate himself, in which case he would be responsible, only for so much of the damage suffered by the plaintiff as arose from the excess of force.
Upon this phase of the case the plaintiff could not properly be said to be entitled, as matter of law, to the full compensation contemplated in the instruction. She might, or she might not be. It would depend upon the finding of the jury whether the defendant could have relieved himself from the unlawful imprisonment without doing the plaintiff any damage.
That this last is the proper and accurate limitation of the plaintiff’s right to damages, seems to be settled both on principle and authority. Rogers v. Waite, 44 Maine, 276; Jewell v. Mahood, 44 N. H. 474; approved in Dingley v. Buffum, 57 Maine, 379; Brown v. Gordon, 1 Gray, 185; Esty v. Wilmot, 15 Gray, 168; Coleman v. N. Y. & N. H. R. R. Co. 106 Mass. 164. The plaintiff’s counsel argues that inasmuch as the instruction given was correct if the jury found that there was no unlawful detention by the plaintiff, it was the duty of defendant’s counsel, if he desired instructions applicable to the other phase of the case, to request them, and that the omission to give them when no request was made is not the subject of exceptions. The same position was taken and overruled in Esty v. Wilmot, 15 Gray, 168, where the ruling at nisi prius, though not identical in form was the same in effect. In that case the ruling was that one who used unnecessary and improper force to accomplish a purpose which was lawful (though not made so by virtue of any special and particular authority given to him by law), thereby "became a trespasser ab initio, and would be liable for all his acts.” It could only be upon the ground that he was thus liable, that the rule, as to the measure of damages given in the case before us, could be regarded as correct. He would not be liable to make compensation for all the damage suffered by the plaintiff, unless he was "liable for all his acts ;” and this excludes the idea that he might lawfully use so much force as might be necessary to free himself from an unlawful detention by the plaintiff, and be liable only for the excess.
While we do not doubt that if the -attention of the presiding judge had been called to this branch of the defence, when he was giving his instructions as to the measure of damages, he would have made the needed correction, we do not feel at liberty
Exceptions sustained.